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Probate

Who has priority in appointment as Personal Representative if a person dies without a Will?

By Estate Planning, Probate

If the decedent has died “intestate” (without a Will), first-priority goes to the surviving spouse in the appointment of a personal representative. If the spouse is not qualified to serve as personal representative, the person selected by a majority in interest of the persons entitled to the estate takes the second-highest priority. The final option is for the heir of nearest degree to the decedent to be appointed personal representative.

Making a Will and nominating a personal representative are fundamental parts of the estate planning process. The attorneys at Bach, Jacobs & Byrne, P.A. are highly-skilled and experienced elder law and trust & estate attorneys who can assist you with the drafting of your Will and other estate documents. Call us at (941) 906-1231 to schedule a consultation.

April 16, 2019
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Can a Will be contested while the testator is still living?

By Elder Law, Estate Planning, Probate

No, in Florida a Will cannot be challenged while the testator is still alive. The Florida Probate Code states clearly: “An action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator.” However, if one suspects undue influence or fraud in the creation of a Will, one can certainly gather facts and evidence in preparation for future litigation if and when the time comes.

After a person’s death, the personal representative serves a Notice of Administration on the estate’s beneficiaries. For 90 days after this notice is served, beneficiaries can contest the Will.

A Will can be challenged for, among other reasons, errors in execution, fraud, lack of testamentary capacity, or presence of undue influence. The attorneys at Bach, Jacobs & Byrne, P.A. are experienced probate litigators and estate attorneys who can advise you about your case. Call us at (941) 906-1231 to set up an appointment.

April 12, 2019
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“It’s All Greek to Me”: Tortious Interference with a Testamentary Expectancy

By Probate

A tortious interference with a testamentary expectancy is a wrongful act (also known as a “tort”) which causes economic harm to another person. In the context of an estate, the tort occurs when an individual prevents a beneficiary from receiving all or part of the gift that was intended to be left for them by the decedent in his/her Will.

In order to establish a claim for tortious interference with a testamentary expectancy, one must be able to prove a) that the decedent intended to leave a given portion of his/her estate to the specific beneficiary and b) that the decedent would have left those assets to the beneficiary were it not for the intentional actions of the defendant (also known as the “tortfeasor”).

It is important to note that courts generally will only allow for tort claims in regard to an inheritance when no alternate probate remedies are available to the plaintiff. If you would like to review your options for probate litigation, the highly-trained and experienced trust and estate attorneys at Bach, Jacobs & Byrne, P.A. can advise you. Call us at (941) 906-1231 to set up an appointment.

April 8, 2019
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If I move to another state, do I need to create new estate documents?

By Elder Law, Estate Planning, Probate

While it may not always be necessary to create entirely new estate documents when moving between states, it is always a good idea to review your estate documents with an attorney of the state in which you will begin living. This is because each state has a unique set of probate laws that governs the distribution of state residents’ assets.

When reviewing your estate plan documents, you might find that you have not moved all of your assets with you to the new state. If you die with real property left in another estate titled in your individual name, an ancillary probate may be necessary. This means that two probates may have to occur: one in the state in which you were living when you died, and one in the state in which you used to live where your property still remains.

To avoid the costs and delays of having multiple probate proceedings, you should at least review your estate documents with the experienced and dedicated elder law and estate attorneys of Bach, Jacobs & Byrne, P.A., as we can help you determine if they are valid in Florida and review the titling of all of your assets. Call us at (941) 906-1231 to schedule a consultation.

April 4, 2019
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How is the Internal Revenue Service (IRS) involved in probate?

By Probate, Tax Law

It is the duty of the personal representative of an estate to oversee the repayment of debts owed by the decedent as well as to submit the final tax returns for the decedent. It is necessary for the personal representative to complete a final federal individual income tax return (Form 1040), being sure to make note of all income up to date of death as well as any credits or deductions to which the decedent is entitled. Then, the personal representative may need to file Form 1041, the U.S. Income Tax Return for the Estate. For federal gift taxes, Form 709 may be filed; Form 706 is the return filed for the federal estate tax, if it is required.

If the decedent has not kept up to date with his/her tax returns, it is up to the personal representative to pay off the tax returns from previous years from assets of the estate. A personal representative may verify the tax return history of a decedent by submitting Form 4506-T, Request for Transcript of Tax Return.

If you are a personal representative in need of probate assistance or wish to evaluate whether a probate proceeding is necessary to administer an estate, please call the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to schedule a consultation. Attorney Fred Jacobs is a Florida Board Certified Tax Lawyer who can also assist you with the preparation and filing of an estates tax return.

March 15, 2019
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In probate, what happens if the available assets are insufficient to pay off all claims?

By Probate

During a probate process, the personal representative of the estate has to distribute the assets of the decedent according to classes specified by the Florida Probate Code. First, the Class 1 expenses are paid off: the costs of probate administration, the compensation of the personal representative and his/her attorneys, etc. Class 2 expenses – funeral, internment, and grave marker costs – follow, with debts and taxes as Class 3. Final-illness medical expenses constitute Class 4, family allowance makes up Class 5, and other costs comprise the final classes.

When there are not enough assets in an estate to pay each class of expenses in full, the assets received by each class must be abated. The order for abatement of assets received is presented in the Florida Probate Code.

If you have questions about the consequences of a potentially insufficient estate, you should consult with an attorney experienced in trusts & estates. The attorneys at Bach, Jacobs & Byrne, P.A. are seasoned probate and estate attorneys who can advise you about your options. Call (941) 906-1231 to set up an appointment.

March 11, 2019
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How can I file a wrongful death claim?

By Elder Law, Probate

Florida Statute §768.19 states:

When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured.

A wrongful death lawsuit may be filed by the personal representative of the decedent’s estate within four years of his/her death. Any spouse, child, parent, or dependent blood relative of the decedent may ask the personal representative to file the wrongful death claim on their behalf. Examples of incidents that can result in wrongful death include:

-Automobile accidents

-Medical malpractice

-Defective products

-Workplace accidents

-Intentional criminal actions

Typically, wrongful death cases are pursued by personal injury attorneys. However, because of the probate aspects of such cases, retention of a probate attorney is also necessary. If you are a personal representative of an estate, or if you believe your loved one has recently been the victim of wrongful death, the attorneys at Bach, Jacobs & Byrne, P.A. are skilled probate litigators and elder law attorneys who can assist you with the commencement of a probate proceeding to pursue a lawsuit due to wrongful death. Call (941) 906-1231 to schedule an appointment.

March 7, 2019
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What is Florida’s non-claim statute?

By Probate

Florida Statute §733.702 is often referred to as the “non-claim statute.” It sets forth that:

[N]o claim or demand against the decedent’s estate that arose before the death of the decedent; no claim for funeral or burial expenses; no claim for personal property in the possession of the personal representative; and no claim for damages… is binding on the estate, on the personal representative, or on any beneficiary unless filed in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor.

In other words, with certain exceptions, any claim against an estate that is not filed within the specific time constraints of the Florida Probate Code is not valid. No formal objection must be filed to bar a claim made after the expiration of the creditor claims period: only fraud, estoppel, or insufficient notice may serve as grounds for special extensions.

The attorneys at Bach, Jacobs & Byrne, P.A. are trained probate litigators and trust & estate attorneys. If you need assistance as a personal representative, or if you would like to review your own estate plan documents, please call us at (941) 906-1231 to schedule a consultation.

March 5, 2019
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What are the benefits of using a corporate trustee?

By Asset Protection Planning, Estate Planning, Probate

The decision of who to name as trustee of your Trust is an important one. An option available to you when making this decision is to designate a corporate trustee, a company that will manage the assets in your trust in place of an individual trustee. Some of the advantages of choosing a corporate trustee include:

-Corporate trustees typically have extensive experience managing Trusts

-Corporate trustees are not as susceptible to emotional influence when managing Trusts as family members might be

-Using a corporate trustee removes the potential for conflict among family members who want to be named individual trustee

-Corporate trustees generally have considerable resources available to them when managing Trusts that individual trustees might lack

That said, there are, of course, several disadvantages to choosing a corporate trustee over an individual one. Examples of these are:

-Corporate trustees are often more expensive than individual trustees

-Corporate trustees might not be as familiar with your exact situation as an individual trustee might be

-Corporate trustees might not account for the emotional ramifications of asset management decisions to the extent that an individual trustee might be

Whether you name a corporate or an individual trustee, it is important to name a successor trustee in the event that the one you named is not able to serve. For help drafting a Trust, or to review an existing Trust, please call the elder law and estate attorneys of Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to set up a consultation.

February 21, 2019
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What are the qualifications to serve as a personal representative?

By Estate Planning, Probate

In Florida, the qualifications to serve as personal representative of an estate, as set forth by the Florida Probate Code, are as follows:

-The personal representative has never been convicted of a felony

-The personal representative is mentally able to perform his/her duties

-The personal representative is physically able to perform his/her duties

-The personal representative is 18 years of age or older

Furthermore, the personal representative must be a Florida resident, unless he/she is a family member within a particular degree of relationship to the decedent.

Are you unsure whether you or the individual you would like to serve as personal representative of your estate is qualified and eligible for appointment under the law? Please contact the elder law and estate attorneys of Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to schedule an appointment to discuss your case.

February 15, 2019
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